Dark Alley Assault Occupier's Liability Lawsuit Dismissed

Reasons for judgement were released last week by the BC Supreme Court, Kelowna Registry, dealing with an interesting issue: Can a commercial occupier be sued for an intentional assault for having inadequate lighting in their alleyway.
In last week’s case (Vaughn v. Kelowna Speedometer Ltd.) the Plaintiff was a patron at the Blue Gator Bar and Grill in Kelowna, BC.  After several hours he left the pub.  As he was walking in the pub’s back alley he was “assaulted from behind and seriously injured“.  His assailant was unknown.  The Plaintiff sued the Pub alleging that the alley had poor lighting and this contributed to the assault.  Mr. Justice Shabbits dismissed the lawsuit finding that even if the lighting was inadequate for the conditions it did not cause the assault using the “but for” test.  In dismissing the claim the Court provided the following reasons:

[23] In my opinion, the plaintiff has not shown that but for proper lighting he would not have been injured. I agree with the submission that additional lighting may have reduced the risk of an assault, but lack of lighting did not cause the assault. The plaintiff could have been assaulted in daylight hours, or assaulted farther down the alley. It is speculation to infer that lighting was a factor in the assault occurring. Even assuming that the lighting at the rear of the Blue Gator was inadequate, the evidence is not capable of proving, on a balance of probabilities, that Mr. Vaughn would not have been injured had proper lighting been in place.

[24] Mr. Vaughn bears the burden of showing that “but for” the negligent act or omission, the injury would not have occurred. There is no evidence on which I would find that but for adequate lighting, the injury would not have occurred. I am of the opinion that it has not been shown, on a balance of probabilities, that a lack of lighting caused Mr. Vaughn’s loss.